In employment discrimination law, the phrase “hostile work environment” has a very specific meaning that does not encompass all circumstances that the word “hostile” might suggest.
Courts repeatedly say, for example, that the employment laws do not provide a “general civility code” for the workplace. In addition, as set forth below, in order to be actionable, the alleged “hostility” must be based on a protected characteristic, such as race, sex, age, sexual orientation, disability, etc. As the Second Circuit explained in Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002):
Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
What follows is a brief overview of the general principles applicable when determining whether a work situation is an actionable “hostile work environment.”
A “hostile work environment” is one form of employment discrimination. Unlike other kinds of disparate treatment based on discrete acts – e.g., termination, failure to hire, and demotion – a hostile work environment claim is based on the cumulative effect of individual acts that, as a whole, negatively affect the terms and conditions of employment. See Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO, 2015 WL 5774741, (E.D.N.Y. Sept. 30, 2015) (“[A] hostile work environment claim by its very nature involves repeated conduct over time rather than a discrete occurrence on a particular day.” ).
A hostile work environment claim has two elements:
- That the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his/her work environment, and
- That a specific basis exists for imputing the conduct that created the hostile environment to the employer. (See Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004).)
Let’s break it down a bit further.
Element 1: Actionable Conduct
Under federal law (and New York State law, which applies the same standard), a plaintiff asserting a hostile work environment must allege conduct that
- Is objectively severe or pervasive – that is, it creates an environment that a reasonable person would find hostile or abusive;
- Creates an environment that the plaintiff subjectively perceives as hostile or abusive; and
- Creates such an environment because of the plaintiff’s protected characteristic. (See Parker v. Workmen’s Circle Ctr. of the Bronx, Inc., No. 14CV5327-LTS, 2015 WL 5710511, at *6 (S.D.N.Y. Sept. 29, 2015) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007)).
A hostile work environment can exist in relation to any characteristic protected by law, including (but not limited to) sex, national origin, race, color, religion, disability, age, and sexual orientation. (A sex-based hostile work environment is one form of sexual harassment.)
Note also that the objectionable conduct/harassment need only be “severe or pervasive” – not “severe and pervasive” – to be actionable. Thus, a single event, if sufficiently severe, may be enough to establish a hostile work environment. For example, in Dillon v. Ned Management, Inc., 13-cv-2622 (EDNY Feb. 2, 2015), the Eastern District of New York explained that “[a] single incident of contact with an intimate body part is sufficient to establish a hostile work environment [sexual harassment] claim.”
The New York City Human Rights Law (NYCHRL) is broader than federal and state law. In order to establish a “hostile work environment” under the NYCHRL, a plaintiff need not show that the treatment was “severe or pervasive”, but rather only that s/he has been “treated less well” than other employees because of his/her membership in a protected class. If the employee makes this showing, the defendant may avoid liability by proving that the complained-of conduct consists of nothing more than what a reasonable victim of discrimination would consider “petty slights and trivial inconveniences.” (See Williams v. NYC Housing Authority, 61 AD3d 62 (App. Div. 1st Dept. Jan. 27, 2009).)
Whether the alleged conduct creates a hostile work environment is determined based on the totality of circumstances, including factors such as:
- The frequency of the discriminatory conduct;
- Its severity;
- Whether it is physically threatening or humiliating, or a mere offensive utterance;
- Whether it unreasonably interferes with an employee’s work performance; and
- What psychological harm, if any, resulted.
(See Aulicino v. New York City Dept. of Homeless Services, 580 F.3d 73 (2d Cir. 2009); Harris v. Forklift Systems, 510 U.S 17 (1993).)
As the Supreme Court noted in its 1993 Harris decision, Title VII does not require the alleged conduct to result in “concrete psychological harm.” Harris, 510 U.S. at 22-23 (also observing that “Title VII comes into play before the harassing conduct leads to a nervous breakdown.”).
This determination is highly fact-specific.
Element 2: Imputing the “Hostile” Conduct to the Employer
Assuming there is actionable conduct, a plaintiff alleging a hostile work environment must demonstrate that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.
In Vance v. Ball State Univ., 133 S.Ct. 2434 (2013), the U.S. Supreme Court clarified the standard for determining whether and under what circumstances the employer will be liable in a “hostile work environment” case asserted under Title VII of the Civil Rights Act of 1964. Generally, this depends on the status of the relevant actors. The Court explained:
If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
According to the Court, “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.”
The NYCHRL, on the other hand, provides its own standard for determining whether harassment may be imputed to the employer. Specifically, NYCHRL section 8–107(13)(b) provides:
An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where:
(1) The employee or agent exercised managerial or supervisory responsibility; or
(2) The employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee’s or agent’s discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
(3) The employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct. (Emphasis and paragraphing added.)
In Zakrzewska v. The New School, 14 NY3d 469 (May 6, 2010), the New York Court of Appeals held that the so-called Faragher-Ellerth defense available under federal law – namely, that (1) the employer took reasonable steps to prevent or promptly correct the alleged harassment, and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm – is not available under the NYCHRL.
Conclusion
In each case, the facts must be carefully analyzed, in light of the applicable law, to determine whether you have a case.
If you believe you have suffered (or are suffering) a hostile work environment, please don’t hesitate to contact us today to discuss representation. The initial phone call is always free.